Effective 21 January 1996, the New York Sex Offender Registration Act (SORA), section 3 of Chapter 192 of the Laws of 1995, Correction Law Art. 6-C, sections 168-et seq., modeled after New Jersey’s Megan’s Law, requires that convicted criminal sex offenders register with the appropriate law enforcement agencies. On the basis of an assessment of risk, information pertaining to this offender may be disseminated by the appropriate law enforcement agencies to the public. Under SORA, there must be a determination of: whether a defendant is indeed “a sex offender or a sexually violent predator”; and, “the level of notification”.” These determinations are to be strongly based on the recommendations made by the Board of Examiners of Sex Offenders (the Board). The Board has promulgated a Risk Assessment Instrument (RAI), which is to be utilized by the courts, “to assess the risk of a repeat offense by such sex offender and the threat posed to the public safety.”
Under the RAI, a numerical value to various factors is assigned, resulting in a “total risk factor score.” Based on this score, the offender is further categorized into one of three levels of notification. Where the risk of repeat offense is low, a level one designation (0 to +70) is assigned, and this requires that the appropriate law enforcement agencies are notified pursuant to SORA. Where the risk of repeat offense is moderate, a level two designation (+75 to +105) is assigned, and the appropriate law enforcement agencies “may disseminate relevant information which may include approximate address based on sex crimes offender’s zip code, a photograph of the offender, background information including the offender’s crime of conviction, modus of operation, type of victim targeted and the description of special conditions imposed on the offender to any entity with vulnerable populations” and “any entity receiving information on a sex offender may disclose or further disseminate such information at their discretion.” Where the risk of repeat offense is high, a level three designation (+110 to +300) is assigned, and the sex offender is deemed a “sexually violent predator.” In addition to all the requirements of a level two assignment, a level three sex offender’s exact address may be disseminated, and all of the pertinent information regarding the offender will be made available to the public through a subdirectory.
The RAI is not the sole criterion in determining: whether a defendant is a sex offender or a sexually violent predator”; and “the level of notification.” The sentencing court must also base its determinations on the victim’s statement and any materials submitted by the sex offender. Moreover, the sex offender must be allowed to appear and be heard. As clearly stated in the Risk Assessment Guidelines and Commentary of SORA, the risk factor calculated under the RAI is merely presumptive. If ‘special circumstances’ warrant a departure, the Court may depart from it. This ability to depart is based on the recognition that an objective instrument, no matter how well designed, will not fully capture the nuances of every case. Thus, a court is permitted to bring its sound judgment and expertise to bear on an otherwise coldly objective exercise which seeks to quantify that which may prove to be highly subjective. However, in People v. Ross, 1996, the court held that, “because the hearing was an ‘administrative function,’ it should ‘review the Board’s recommendations only for arbitrariness and capriciousness and otherwise uphold them.”
Here, the first issue is whether, under the circumstances, the court must depart from the guidelines established by the Board of Examiners as set forth in the RAI.
In the criminal case of People v. Lombardo, 1996, the Court held that it was within its discretion to raise the defendant’s category of notification from level one to level two where the defendant had “engaged in sexual misconduct on two separate occasions with two different individuals (children, aged five and seven years respectively) over a period of several months.” While the court determined that this conduct was not encompassed by factor four of the RAI, it found that in light of the “totality of the circumstances” it could exercise its discretion and raise the risk level classification. The court specially noted that the offender had “engaged in sexual misconduct on two separate occasions, with two different (but both very young) victims, over a period of several months.”
In the case at bar, the offender is a native of Turkey who was scheduled to be conditionally released on 1 May 1997 for parole supervision. Prior to his arrest for two separate sexual assaults, offender had been in the country for less than a year. There was no information available regarding defendant’s criminal history before he entered the country. Application of the RAI resulted in a total risk factor score of 85 placing defendant in category two. However, based on the commission of two sexual assaults after having only been in the country for one year, and the Board’s inability to ascertain the defendant’s prior criminal history, the Board deemed it appropriate to enhance defendant’s level of notification to level three. Defendant had refused to accept responsibility, with the resultant consequence of his total risk factor score being increased by ten points
Thereafter, the court held a hearing where defendant appeared and was heard, pursuant to SORA. Defendant was informed of his right to have a counsel appointed, but declined. At this hearing, defendant acknowledged that he had used force in committing the sex crimes for which he stood accused, and affirmed that he had participated in an introductory sex offender program (as stated, this was denied before the hearing).
According to the People, defendant’s risk level must be enhanced to three based on the same factors cited by the Board; the details surrounding the crimes necessitated a level three assessment, specifically the fact that during the course of the second sexual assault, the defendant “inserted his penis into the victim’s vagina then into her anus.”
After careful deliberation, the court found that the enhancement of defendant’s risk level from two to three was unjustified, arbitrary and capricious. First, the RAI adequately accounts for the number of victims in factor three. Second, to find enhancement of risk level appropriate based solely on the Board’s inability to ascertain information about defendant’s prior history violates the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. Third, the People’s contention that the details surrounding the defendant’s second offense warrant a higher risk level was bereft or merit. “Deviate intercourse” is clearly encompassed in factor two of the RAI, and defendant was assessed twenty-five points; and defendant’s prior refusals to accept responsibility for his actions accounted for ten additional points, however, at the time of the hearing defendant had accepted responsibility for the criminal offenses he committed.
The next issue is whether the constitutional proscription of ex post facto laws prohibits retroactive application of SORA.
Under the U.S. Constitution, the passage of ex post facto laws by state governments is prohibited. A retrospective increase in punishment for a crime is invalid legislation.
In the case at bar, the commission of defendant’s crime of child pornography occurred prior to the enactment of SORA.
The main question now is whether the provisions of SORA constitute punishment. If it does, then retroactive application would indeed violate the ex post facto clause.
In the case of Doe v. Pataki, the court held that the ex post facto clause precluded retroactive application of SORA’s public notification and disclosure provisions, but not of its registration provisions. Though still pending appeal, this case had an immediate impact on the proceedings at bar. At that time, if the Pataki decision is not reversed on appeal, it would enjoin “certain members of the Executive Branch of New York State from enforcing those parts of SORA which provide for public notification, including any notification which could flow from a decision unfavorable to defendant on the instant motion.”
By analytical approach, the court examined SORA as it relates to four categories: intent, design, history, and effects. The registration and notification provisions were separately analyzed by the court and it found that only the notification portion of SORA constituted punishment and violated the ex post facto clause.
Both the subjective and objective intent of the legislature in enacting the law was also examined and it was determined that the legislative intent was punitive in nature. While the preamble asserted a regulatory purpose, examination of the debate minutes of the New York Assembly revealed a punitive intent on the part of the legislature.
Queens County Sexual Misconduct Attorneys and Queens County Sexual Assault Attorneys at Stephen Bilkis & Associates are experts in the fields of law mentioned in the case above. If you have inquiries regarding the issues tackled, please feel free to call our toll free number or visit our place of business. We have offices all over the State of New York.